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Tag Archives: section 20

“I completely forgot”

 

This is a successful appeal (indeed fairly unusually it was an appeal that by the time the Court of Appeal came to look at it, all four parties were in agreement should be granted) about a decision in the High Court to make a finding of sexual abuse against a child, T, who had just turned 16 when the High Court considered the case. T had been the subject of a Care Order and Placement Order when she was six, then placed for adoption.

 

(Bit nervous about this one, as I know that 75% of the silks in the case read the blog… and I have a mental crush on all three of them. And because I also have a lot of respect for the High Court Judge who gets monstered in the appeal judgment)

 

The adoption got into difficulties, and T went into respite care for a short time in May 2014. She went back to her adopted family at the end of May and that carried on until the end of August 2014, at which point the adopters agreed a section 20 arrangement – the social work team wishing to remove T as a result of her allegation to a CAMHS worker. The allegation was that during that period from May 2014-August 2014 when she was with her adopted family, the adoptive father had sexually assaulted her, including one allegation of rape.

P (A Child), Re [2018] EWCA Civ 720 (11 April 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/720.html

 

The section 20 arrangement continued. It was obvious to all that T would not be going back to the adopters. (Listen, I know that at this point, the adopters are legally her parents and I don’t seek to diminish that, but I think to understand the case it is easier to say adoptive parents and birth parents). The s20 continued until the Local Authority issued proceedings in April 2016. By that time, T had given an ABE interview, made further allegations and declined a second ABE interview and made partial retractions of the allegations. Her behaviour had deteriorated and by the time of the Court case, had been detained under the Mental Health Act 1983. (which is rare for a child)

 

The first question the case raises then, is why this child was under a section 20 arrangement for so long, rather than proceedings having been issued?   I’ll preface this by saying that obviously a case involving an allegation of rape against a child – particularly rape where the alleged perpetrator is an adopter and someone still approved to adopt children, ought to have been placed before the Court. Very quickly after those allegations were made – perhaps allowing a short period of time for the investigation to take place.

(I can’t lay my hands on the authority at the moment, and Hershman McFarlane is being uncooperative, but I’m fairly sure that there is a mid 1990s authority that says where the LA believe the child has been the subject of serious sexual or physical abuse, they ought to place it before the Court by issuing proceedings… I wish I could find the authority. Perhaps one of my illustrious silk readers can illuminate us.  The Act itself just says that the LA can’t issue proceedings unless they believe the threshold criteria to be met – so it says that there are situations where they shouldn’t, it is silent about the circumstances in which they should. The LA don’t have to issue proceedings on every child where the threshold is met. )

 

So what follows is not a justification or excuse for the delay, but an attempt to consider the context.

 

Here are some possible reasons why proceedings were not issued :-

 

  1. It just never got considered (prior to April 2016), and it wasn’t a conscious decision not to, so much as just nobody thinking about it.
  2. The adoptive parents were not asking for T back, T didn’t want to go back, T was in what was considered to be a safe place, and so there was a thought process that nothing was to be gained by going to Court. T wasn’t going to be adopted by anyone else and a Care Order would add nothing to the situation on the ground. Perhaps people even actively thought about the ‘no order principle’ and considered that it wasn’t possible to make out a case that the making of a Care Order (as needed by article 8) would be ‘proportionate and necessary’
  3. This was happening BEFORE the s20 drift was coming to judicial attention and prominence as an issue, and when those s20 cases did emerge, that’s when the LA did take action.
  4. Perhaps everyone was caught up in the day to day management of T and what she needed in terms of placement and stability, and overlooked the bigger picture.
  5. Let’s be quite honest – there’s the potential that the parents in this case were treated differently (because they were adopters) to the way they would have been treated as birth parents.

 

However, ALL of those issues are hard to excuse the fact that T’s sister, X, remained with the adoptive parents. So the LA had an allegation of rape by T, known about for over 18 months, and knowing that a younger sister was still living with the adopters.

 

(So either they didn’t believe T’s allegations OR they thought for some reason that X was safe, but the point is they couldn’t know for sure either way)

Anyway, the Court of Appeal were critical of the delay

 

12.Unfortunately, and to my mind inexplicably, the state of affairs whereby T was accommodated under CA 1989, s.20 was maintained from August 2014 until the institution of care proceedings in April 2016, notwithstanding the clear and stark issue of fact created by T’s allegations and the father’s wholesale denial. Irrespective of the fact that T’s mental health and presenting behaviour may have rendered it impossible for her placement in the family home to be maintained, the need to protect and have regard to the welfare of the younger sibling, X, who remained in the family home, required this significant factual issue to be determined

 

The next issue in the case is that the adoptive parents agreed that the threshold was met for T, because she was beyond parental control. The LA, however, sought a finding about the sexual abuse allegations (five findings in all). That obviously makes sense given that X wasn’t beyond parental control, and there was a need to establish what happened to T, to decide if X was at risk of sexual harm. That makes sense to me. (I can’t, so far, make sense of why it appears that the proceedings were about T, and not T AND X – and the Court of Appeal say that

 

 

50.So far as X is concerned, although she has been the subject of arrangements made under the Pre-commencement Procedure operated within the Public Law Outline, no proceedings have ever been issued with respect to her since the making of the adoption order )

 

The High Court heard from 16 witnesses at the finding of fact hearing. Things went wrong when Parker J came into Court to deliver her judgment

 

 

 

 

The judgment

17.The oral evidence had been concluded on 18 November 2016 and closing submissions were delivered on 18 and 25 November. The case was then adjourned to 8 December 2016 for the delivery of judgment. On that occasion, however, the Judge explained that she had been occupied with other cases and had been unable to prepare a written judgment. She had, however, reached “some conclusions” and, with the parties’ agreement, she stated what those were in the course of a short judgment which runs to some 6 pages in the agreed note that has been prepared by the parties. In short terms, the Judge rehearsed a number of the significant points in the case, for example, T’s mental health, the recording of her allegations and the ABE interview process, any evidence of inconsistency and T’s overall reliability, and an assessment of the father’s credibility before announcing her conclusion in the following terms:

 

 

 

“I have come to the conclusion therefore, and I am sorry to have to do so as I thought the mother and the father were the most likeable people, but during the course of 2014, there was an attempt at least, it may have been more, of sexual congress between the father and T.”

18.The case was then adjourned to 30 January 2017 for the delivery of a full judgment. A note of what had been said in court on 8 December was agreed between the parties and submitted to the Judge. On 30 January the Judge again indicated that, due to pressure on her time as a result of other cases, she had not been able to prepare a full judgment. Instead the Judge gave a lengthy oral judgment, seemingly based on prepared notes.

 

 

19.On 30 January, when the Judge had concluded her judgment, counsel for the father immediately identified a number of aspects in which, it was submitted, the judgment was deficient. The Judge directed that an agreed note of what she had said should be prepared and submitted to her within 7 days, together with requests from each party identifying any suggested corrections or requests for clarification.

 

 

20.The parties, in particular those acting for the parents, complied with the tight 7-day timetable. The Judge was provided with an agreed note of judgment which runs to some 115 paragraphs covering 42 pages. In addition, counsel submitted an annotated version of the note indicating possible corrections, together with a list of more substantial matters which, it was claimed, required clarification. In doing so those acting for each of the parties were complying precisely with the process originally described by this court in the case of English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 and subsequently endorsed in the family law context by this court on many occasions.

 

 

All of this was compounded then, because despite knowing that the case was going to be appealed, following the judgment in January 2017, the transcript of the judgment wasn’t made available. The transcribers sent it to the Judge on 18th March 2017 – the Judge sent an approved copy back to them SIX MONTHS later, September 2017, but that approved copy never got sent to the parties or the Court of Appeal.

 

The Court of Appeal (at the time of hearing the appeal) were therefore working from an agreed note of the judgment rather than the transcript

The Judge’s decision

26.Early in the judgment of 30 January the Judge records the decision that she had already announced at the December hearing in the following terms (paragraph 17):

 

 

 

“I have decided that she has been sexually interfered with by her father and that she has been caused significant emotional harm by reason of her mother’s disbelief in telling her so, although my criticism of the mother was highly muted in the circumstances for reasons I will come back to.”

27.After a summary of the evidence the Judge stated (paragraph 58):

 

 

 

“It is against that background that I need to assess the threshold.”

 

She then set out the content of the local authority fact-finding Schedule introducing it with the following words:

 

“I am asked to make findings in terms of:”

 

Unfortunately, the judgment does not record the Judge’s decision on any of the five specific findings of sexually abusive behaviour alleged in the local authority Schedule save that, at paragraph 71, the Judge stated “I also find that the description T gives of her father attempting to penetrate her is wholly believable”. Whether that statement amounts to a finding is, however, not entirely clear as it simply appears as a statement in the 8th paragraph of a 40 paragraph section in which the Judge reviews a wide range of evidence.

28.The basis of the appeal is that the Judge’s judgment fails sufficiently to identify what (the local authority would submit, if any) findings of fact the Judge made.

 

 

29.Before leaving the 30 January judgment, it is necessary to point to 2 or 3 other subsidiary matters that are relied upon by the appellants as indicating that the judgment, substantial though it may be in size, is inchoate:

 

 

 

  1. a) Prior to listing the witnesses who gave oral evidence the Judge states “I think I heard the following witnesses”. The list of 13 witnesses is said to omit 3 other individuals who also gave oral evidence.

 

  1. b) In the closing stages of the judgment the Judge makes one additional point which is introduced by the phrase “one thing I forgot to say” and a second which is introduced by “also one thing I have not so far mentioned, and I should have done”.

 

  1. c) At the very end of the judgment, and after the Judge has gone on to deal with procedural matters unrelated to the findings of fact there appears a four paragraph section dealing with case law related to the court’s approach to ABE interviews where it is asserted there has been a breach of the ABE guidelines. That section is preceded by the phrase “I completely forgot”.

 

There are of course, all sorts of different styles and approaches one can adopt to delivering a judgment and the Court of Appeal are not trying to be prescriptive or to fetter a Judge’s discretion of   stylistic delivery. Having said all that, if the immediate comparator that comes to mind is Columbo talking to Roddy McDowell, that’s not a good thing.

 

Have I ever been happier to be able to get a particular picture into the blog? Maybe Kite-Man, but I am VERY pleased about this one

 

The appeal itself

30.Two notices of appeal issued on behalf of the father and mother respectively were issued in August 2017. Although this was many months after the making of the care order and the delivery of the oral judgment in January 2017, I accept that the delay arose because the parties were waiting for the Judge to engage in the process of clarification that she had directed should take place and, thereafter, the production of a final version of the judgment. There were also considerable difficulties in securing legal aid, caused at least in part by the absence of a judgment. At various stages the Judge’s clerk had given the parties some hope that a final judgment might be produced. The notices of appeal were only issued once the parties were forced to conclude that a final version of the judgment was unlikely to be forthcoming. Following the failure of the efforts made by the Court of Appeal to obtain a judgment, I granted permission to appeal on 16 November 2017.

 

 

31.The grounds of appeal and skeleton arguments that argue the cases of the father and of the mother from their respective positions engage fully with the underlying facts in the case in addition to arguing that the process as a whole has been fatally compromised by the court’s inability to produce adequately precise findings and to do so in a judgment which sufficiently engages with the significant features of the evidence. As it is on this latter basis that the appeal has preceded by consent, my Lords and I have not engaged in the deeper level, granular analysis of the evidence that would otherwise be required.

 

 

32.In terms of the English v Emery Rheimbold process, those acting for each of the two parents submitted short (in the mother’s case 3 pages, in the father’s case 5 pages) requests for clarification on specific issues. Each of those requests is, on my reading of the papers, reasonable and, even if a specific request were unreasonable, it was open to the Judge to say so.

 

 

33.The resulting state of affairs where the only record of the Judge’s determination is imprecise as to its specific findings and silent upon the approach taken to significant elements of the evidence is as regrettable as it is untenable.

 

 

34.That the state of affairs that I have just described exists, is made plain by the stance of the local authority before this court. Rather than simply “not opposing” the appeal, the local authority skeleton argument, as I will demonstrate, specifically endorses the main thrust of the appellant’s case. Further, we were told by Miss Hannah Markham QC, leading counsel before this court, but who did not appear below, that the local authority’s position on the appeal has been approved at every layer of management within the authority’s children services department. For one organ of the state, the local authority, to conclude that the positive outcome (in terms of the findings that it sought) of a highly expensive, time and resource consuming, judicial process is insupportable is a clear indication that the judicial system has, regrettably, failed badly in the present case.

 

 

35.Against that background it is helpful to quote directly from the skeleton argument prepared by Miss Markham and Miss Grieve on behalf of the local authority:

 

 

 

“5 At the heart of the appeal are findings that (father) behaved in a sexually inappropriate way towards his daughter T. The findings are set out in this way, as it is accepted by the respondent local authority that the judgment given by Mrs Justice Parker does not particularise the findings made nor does it cross refer findings to the local authority Schedule of findings. As such the findings have not been accurately recorded or set out.

 

….

 

“14 The local authority does not oppose the appeal for reasons set out below.

 

15 However the local authority does not accept that all grounds as pleaded would be matters or arguments which the local authority would either not oppose or indeed agree, if taken in isolation. The focus in approaching this appeal has been to stand back and have regard to the fairness and integrity of the judgment and the process taken by the parties to try to clarify the judgment and in particular the findings made.

 

16 It is submitted that it must be right and fair that a party against whom findings are made should know the actual findings made and the reasons for them. It is submitted that reasons on reasons are not necessary, but clarity as to findings and a clear basis for them is a primary requirement of a Judge.

 

17 It is significant that the learned Judge has resisted requests of her to clarify her judgment and that in particular she has not taken opportunities to set out the findings she has in fact made.

 

18 Dovetailing into that error is the argument that flows from that omission; absent clear findings it is impossible to see, understand and argue that the Judge formulated her findings on clear, understandable and right reasoning.

 

 

21 In this instant case it is submitted on behalf of the parents that the judge did not even set out the findings, not least allow them to see whether she fairly and with significant detail set out her reasoning for coming to the findings she then made. Further requests of the Judge were properly made and the learned Judge has neither responded to them nor clarified why she is not engaging in the requests of her

 

 

23 (Having listed the short specific findings made by the Judge) It is acknowledged that these matters are the most detail (the Judge) gives to her findings. Whilst it is asserted by the local authority that the learned Judge was able, within the ambit of her wide discretion to make findings, it was incumbent upon her to set out with clarity what those findings were and how she came to make them.

 

24 It will be apparent from the matters set out above that she failed in this task and that she failed to cross refer back to paragraph 59 (where the Judge listed the content of the local authority Schedule of findings) and set out what she had or had not found proved.”

36.The local authority identified two specific grounds relied upon on behalf of the father, one asserting that the Judge rejected the father’s case on the deficits on the ABE interview, against, it is said, the weight of the evidence, but provides no analysis for coming to that conclusion. Secondly the local authority accepts that there were many examples of inconsistency within the accounts that T had given. In both respects the local authority expressly acknowledged that the Judge failed to engage with these two important aspects of the case and failed to set out her findings in respect of each.

 

 

37.The local authority, rightly, argue that a Judge has a wide discretion to accept or reject evidence in a case such as this and that the Judge does not have to refer expressly to each and every detail of the evidence in the course of their judgment. The local authority’s skeleton argument, however, accepts “that a fair and balanced assessment of the cases advanced and evidence for and against said cases is necessary, proportionate and fair and has not occurred sufficiently in this complex case.”

 

 

38.Miss Kate Branigan QC, leading Miss Lianne Murphy, both of whom appeared below for T, acting on the instructions of the children’s guardian adopt a similar stance to that taken by the local authority. In their skeleton argument (paragraph 10) they state:

 

 

 

“Albeit T maintains that the allegations made against her father are true, the children’s guardian has had to conclude that the judgment as given by the court on 30 January 2017 is not sustainable on appeal and that inevitably the appeals on behalf of both appellants must succeed.”

 

Later (paragraph 14) it is said:

 

“Regrettably we accept that it is not possible from the judgment to identify what findings the court has made. At paragraph 59 of the judgment note, the court sets out the detail of the findings it is invited to make, but at no stage thereafter does the learned Judge indicate which of the findings she has found established to the requisite standard nor does she attempt to link what she is saying about the evidence to the specific findings sought….On this basis alone the judgment is arguably fatally flawed.”

 

And at paragraph 15:

 

“We further recognise in certain key respects the court has failed to engage with the totality of the evidence to the extent that any findings the court has purported to make are unsustainable in any event. In particular, we accept the arguments advanced on behalf of the appellant father… that the court failed to undertake a sufficiently detailed analysis of the context in which T’s allegations came to be made, failed to engage with the professional evidence which called into question the reliability of those allegations and did not weigh appropriately in the balance the inconsistencies which were clearly laid out on the evidence in relation to T’s accounts.”

39.In the light of the parties’ positions, the oral hearing for this appeal was short. All were agreed that the appeal must be allowed with the result that, at the end of a process which started with allegations made in August 2014, and in included a substantial trial before a High Court Judge, any findings of fact made by the Judge and recorded in her oral determinations made in December 2016 and on 30 January 2017 must be set aside and must be disregarded in any future dealings with this family.

 

 

40.For our part, my Lords and I, rather than simply endorsing the agreed position of the parties, had, reluctantly but very clearly formed the same view having read the note of the 30 January judgment and having regard to the subsequent failure by the court to engage with the legitimate process of clarification that the Judge had, herself, set in train

           41.Before turning to the question of what lessons might be learned for the future and offering some guidance in that regard, a formal apology is owed to all those who have been adversely affected by the failure of the Family Justice system to produce an adequate and supportable determination of the important factual allegations in this case. In particular, such an apology is owed to T, her father and her mother and her younger sister X, whose own everyday life has been adversely affected as a result of professionals justifiably putting in place an intrusive regime to protect her from her father as a result of the statement of the Judge’s conclusions 16 months ago.      

 

    

The Court of Appeal were asked to give some clarifying guidance in relation to the issue of what happens where the parties ask (as they must) for the Judge to clarify flaws in the judgment and after a period of time the Judge has not done so. For a start, when does the clock for the appeal start to tick? After judgment, or after the request for clarification, or after receipt of such clarification?

 

 

 

42.Whilst it is, fortunately, rare for parties to encounter a situation such as that which has arisen in the present case, such circumstances do, however, occur and we have been invited to offer some limited advice or guidance.

 

 

43.The window in which a notice of appeal may be issued under Civil Procedure Rules 1998, r 52.12(2) is tight and is, in ordinary circumstances, limited to 21 days. It is often impossible to obtain a transcript of a judgment that has been delivered orally within the 21 day period. Unfortunately, it is also the experience of this court that not infrequently problems occur in the five or six stages in the administrative chain through which a request for transcripts must proceed and it may often be months before an approved transcript is provided. Whilst it is plainly more satisfactory for the judges of this court to work on an approved transcript, and that will normally be a pre-requisite for any full appeal hearing, the Lord or Lady Justices of Appeal undertaking evaluation of permissions to appeal in family cases are now more willing to accept a note of judgment (if possible agreed) taken by a lawyer or lawyers present in court in order to determine an application for permission to appeal rather than await delivery of an approved transcript of the judgment. It is therefore important for advocates attending court on an occasion when judgment is given to do their best to make a full note of the judgment so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed.

 

 

44.The observation set out above requires adaptation when a party seeks clarification of the Judge’s judgment. In such a case, it must be reasonable for the party to await the conclusion of the process of clarification before being obliged to issue a notice of appeal, unless the clarification that is sought is limited to marginal issues which stand separately to the substantive grounds of appeal that may be relied upon.

 

 

45.Where, as here, the process of clarification fails to achieve finality within a reasonable time, it is not in the interests of justice, let alone those of the respective parties, for time to run on without a notice of appeal being issued. What is a reasonable time for the process of post judgement clarification? The answer to that question may vary from case to case, but, for my part, I find it hard to contemplate a case where a period of more than 4 weeks from the delivery of the request for clarification could be justified. After that time, the notice of appeal, if an appeal is to be pursued, should be issued. The issue of a notice of appeal does not, of itself, prevent the process of clarification continuing if it has not otherwise been completed. Indeed, in some case the Court of Appeal at the final appeal hearing may itself send the case back to the Judge for clarification. The benefit of issuing a notice of appeal, apart from the obvious avoidance of further delay, is that the Court of Appeal may itself directly engage with the Judge in the hope of finalising any further outstanding matters.

 

 

Whilst the Court of Appeal say that because of the administrative nightmare that is obtaining an approved transcript, they will accept an agreed note from the lawyers I wonder how on earth that is going to work with cases involving only litigants in person (eg about 90% of private law proceedings)

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Local Authority unlawfully caring for child for four years (section 20 abuse)

 

Herefordshire Council v AB 2018

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/10.html

 

This is the case referred to in my earlier blog posts, and in this news story in the Guardian

https://www.theguardian.com/society/2018/mar/16/council-kept-boy-9-in-care-for-whole-of-his-life-judge-reveals?CMP=share_btn_link

 

The Guardian piece is not overselling it.

 

  This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time.  Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.

May as well open with the key bit

 

In the case of one of the 42 children accommodated by the local authority referred to above, the mother withdrew her consent for her child to be accommodated in 2013.  The local authority not only did not return the child to her mother’s care, it effectively did nothing in terms of care planning for the child.  Thus, for four years the local authority unlawfully had care of this child. 

 

That wasn’t the only example.

 

On 28 March 2010 CD’s mother gave formal written notice to the council of the withdrawal of her consent to CD being accommodated.  In response, the local authority (1) did not return CD to her care, but (2) advised her to seek legal advice if she wished CD to be returned to her care.  The director has acknowledged that this was a misuse of the local authority’s powers and it should have made immediate arrangements to return CD to his mother’s care.  It is, however, far worse than being a misuse of powers.  The local authority acted unlawfully and unlawfully retained care of CD until at least February 2013 when it appears from the chronology that the mother was engaging with the local authority and agreeing to CD remaining in care. 

 

The Judge, Keehan J, made orders that the Director of Children’s Services file statements explaining what had gone wrong with these two children and to set out all of the children that were in section 20 accommodation with details.

 

  1. I required the Director of Children’s Services to file and serve (i) a statement explaining the events and lack of planning in respect of CD and GH, and (ii) a statement detailing the circumstances of each and every child accommodated by this local authority pursuant to the provisions of section 20.
  2. The latter document made very grim reading.  Excepting CD, GH and three other children who are now the subject of public law proceedings, the local authority is accommodating 42 children.  Of these 42 children, the local authority have now recognised that 14 have wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and/or should have been the subject of legal planning meetings and/or care proceedings at a much earlier time.

 

My mathematical skills are not perfect, but that’s about a third of the children that they were accommodating that were being wrongly and abusively accommodated.

 

Gulp.

 

  1. Mr Chris Baird was appointed the permanent Director for Children’s Wellbeing for this local authority (otherwise known as the Director of Children’s Services and hereafter referred to the as ‘the Director’) on 10 November 2017.  It is right that I record at an early stage in the judgment that he (a) has readily and timeously complied with all directions made by this court for the filing and serving of statements and letters (b) has been completely frank and open about the past failings of this local authority (c) has provided a ready explanation of the steps he has taken or will take to remedy past mistakes, and (d) has chosen to attend court hearings in person.
  2. Later in this judgment, I will be roundly critical of egregious failings of this local authority in relation to CD and GH but also in relation to the 14 children to whom I have referred above.  Nevertheless, it is important for me to recognise and acknowledge that Mr Baird and the new senior management team at this local authority have taken and will take steps to ensure that such dreadful failures in the care of and planning for children and young people in its care will not occur in the future.  I have every confidence in the sincerity and commitment of this director to improve very significantly the planning for and provision of services to the children and young people for whom it is responsible.

 

 

Very decent of Mr Baird not to throw his predecessor under the bus.

 

(I also note with pleasure the use of the word ‘timeously’ which I was naming to a friend as one of my favourite words just last week)

 

  1. In February 2017, I sent a letter to the Director of Children’s Services of each of the 22 local authorities on the Midlands circuit with the consent and approval of all of the circuits’ designated family judges and of the chairs of the circuits’ ten local family justice boards.  One of the principal topics addressed was the use of section 20 accommodation.  I offered the following guidance:

“The use of section 20 by a local authority to provide accommodation to children and young people is perfectly legitimate if deployed in appropriate circumstances.  It is a useful tool available to local authorities.  I offer the following as examples of the appropriate use of section 20 but I emphasise these are examples only and not an exhaustive list: (a) a young person where his or her parents have requested their child’s accommodation because of behavioural problems and where the parents and social care are working co-operatively together to resolve the issues and to secure a return home in early course; (b) children or young people where the parent or parents have suffered an unexpected domestic crisis and require support from social care to accommodate the children or young people for a short period of time; (c) an unaccompanied asylum-seeking child or young person requires accommodation in circumstances where there are no grounds to believe the threshold criteria of section 31 of the Children Act 1989 are satisfied; (d) the children or young people who suffer from a medical condition or disability and the parent or parents seek respite care for a short period of time; or (e) a shared care arrangement between the family and local authority where the threshold of section 31 care is not met yet, where supported, this intensive level is needed periodically throughout a childhood or part of a childhood. 

“In all of the foregoing, it is likely the threshold criteria of section 31 of the Children Act 1989 are not or will not be satisfied and/or it would be either disproportionate or unnecessary to issue public law proceedings.  It is wholly inappropriate and an abuse of section 20 to accommodate children or young people as an alternative to the issue of public law proceedings or to provide accommodation and to delay the issue of public law proceedings.  Where children and young people who are believed to be at risk of suffering significant harm are removed from the care of their parent or parents, whether under a police protection and emergency protection order or by consent pursuant to section 20, it is imperative that care proceedings are issued without any delay.”

 

  1. This guidance, which was given by me in my role as the Family Division Liaison Judge of  the Midland Circuit, has neither legal effect nor greater significance than, as was intended to be, helpful advice to the respective directors, their senior staff, their social workers and the local authority’s child care solicitors. 

 

 

We shall see whether the Supreme Court agree with that formulation – they might well do.

 

CD was accommodated on 14th October 2009.

 

On 28 March 2010, the mother wrote to the local authority formally to withdraw her consent to CD remaining accommodated by the local authority pursuant to the provisions of section 20.  The local authority did not act on this withdrawal of consent and, instead, advised the mother to seek legal advice if they wished CD to be returned to their care.  I shall return to this issue later in the judgment. 

 

 

To make it absolutely plain, once mother does that, the LA have to return the child to her care or obtain an order from the Court authorising them not to do so.  They can’t just pretend she didn’t say it.  It is particularly rich to suggest to the mother that she seeks legal advice, when the LA obviously weren’t doing that themselves, or at least weren’t following it.

 

If the LA had asked me at that point what the legal status of the child was, I would have sent them this image

 

And, if you want to make provision for the damages claim that’s about to follow, you may want to locate “Treasure Island”

 

  1. A further LAC review was held on 29 April 2010.  That review recommended that the local authority should take steps to address CD’s legal security and permanence.  A legal planning meeting was held on 4 August 2010.  The legal advice given was to issue care proceedings to gain greater clarity around the parties’ views and timescales to secure permanence for CD as early as possible and for CD to have a voice in the proceedings through his guardian and solicitor.  Nothing was done.
  2. A further LAC review held on 18 November 2010, during which CD’s independent reviewing officer raised concerns about the delay in achieving permanence for CD and reiterated that the legal advice given needed to be followed.  Nothing was done.
  3. Two further legal planning meetings were held on 16 February 2011 and, following the completion of an updated assessment of CD’s needs again, on 30 March 2011, there was agreement at that latter meeting to initiate care proceedings.  At a further LAC review on 6 April 2011, no further recommendations were made as a clear decision had been made on 30 March. 
  4. On 5 May 2011, the decision to initiate care proceedings was retracted by the then Assistant Director of Children’s Services who stated she was not, “agreeing to issuing proceedings and considered that seeking a care order would not make a significant difference to CD’s care given he had been accommodated for some time”. 
  5. This decision was fundamentally misconceived and fundamentally wrong.
  1. The next LAC review was held on 28 February 2013 where it was agreed that CD should remain looked after until his 18th birthday.  There had been a query about his legal status.  The decision was made that he remained accommodated pursuant to section 20, noting that CD’s mother was engaging well with the arrangements.  A further LAC review was held on 16 July 2013.  No changes were recommended to CD’s care plan.  The same approach was taken at the next LAC review on 9 December 2013 but there were discussions about the possibility of CD’s foster carers applying for a special guardianship order. 

 

There are a string of further LAC reviews, all thinking that the section 20 was okay  (basing that presumably on the Feb 2013 view that “Mother was engaging well with the arrangements”), then

 

There was a further LAC review on 3 April 2017.  On 5 September 2017, legal advice was sought at a legal gateway meeting.  It was recognised that CD had been accommodated under section 20 since 2009.  Somewhat surprisingly, the section 20 accommodation arrangement was deemed appropriate.  Thereafter, the decision was made to issue these public law proceedings. 

 

GH was accommodated on 9th July 2008 – the LA relying on the purported consent given by his mother, who was fourteen.

 

  1. At a LAC review held on 4 March 2014, there was a change of plan by the local authority.  The local authority decided to take GH’s case to a legal planning meeting.
  1. It was decided at the legal planning meeting that care proceedings should be instigated. The care plan of the same date stated that the local authority is considering the need to obtain a full care order. Nothing, however, was done

Well, at least they decided after nearly six years to issue care proceedings. Job done.

 

  1. In June 2016 a comprehensive review was undertaken of all section 20 accommodation cases by this local authority.  A LAC review was then held in respect of GH on 8 December 2016 where it was reported that legal advice regarding the continuing use of section 20 had been sought.  The decision was made that (i) an application for a care order needed to be initiated, and (ii) the local authority needed to gain parental responsibility due to GH’s complex health needs and the fact that he might need to move to a new placement in the near future. Nothing was done.

 

Okay, so having decided after six years that they needed to do something, they didn’t do anything for a further two years, then reviewed it and realised that they needed to do something. Then did nothing.

 

A further legal gateway meeting took place in March 2017.  The case was escalated by the independent reviewing officer to the Children with Disabilities Team at regular intervals between May and July 2017.  The independent reviewing officer then raised the matter with the Head of Service for Safeguarding and Review, who in turn escalated it to the relevant Head of Service in July.  It was not until 22 September 2017 that this application for a care order was in fact made. 

 

 

Oh boy.

 

  1. I have never before encountered two cases where a local authority has so seriously and serially failed to address the needs of the children in its care and so seriously misused, indeed abused, the provisions of section 20 of the Children Act 1989.  By happenchance alone, as it appears to me, both children have remained in the care of quite extraordinary and superlative carers who have met their respective needs extremely well.  I offer the warmest of thanks and congratulations to CD’s foster carers and to GH’s foster carer.  For periods of at least eight years they have each cared for the two boys without any parental responsibility for either of them.  Both sets of foster carers have in many ways been failed by this local authority, but their commitment to CD and GH respectively has been undaunted and unfailing. 
  2. Nevertheless, serious and long lasting damage has resulted.  Contact between CD and his mother had never properly been considered nor promoted.  The mother is not without blame on this issue.  It led however to an extremely unfortunate event recently where the mother and CD inadvertently came across each other in public and the mother did not recognise her son.  CD was dramatically affected.  What child could reasonably cope with their mother or father not recognising them?
  3. In respect of GH, his mother was so young when he was born that she needed the greatest possible advice, support and consideration.  She was not given any of the foregoing.  The local authority, as referred to above, did not even consider whether she was capable of consenting to GH’s accommodation.  Thereafter she was frankly side-lined.  As she grew older and matured, little, if any, consideration was given as to whether she could then care for GH or whether she could and should play a greater role in his life.  I have a very real sense that her role as his mother, albeit, or perhaps because, she was so very young, was simply overlooked and ignored.  Fortunately, with the issuing of these proceedings it has been possible to secure the placement of both children.  In respect of CD with his current carers as special guardians.  In respect of GH, to secure his placement with ZA but then to consider where his interests lie in a future long-term placement.  It has also enabled CD’s foster carers to be invested with parental responsibility for him.
  4. I have been seriously critical of the actions and inactions of this local authority.  I do not, despite the explanations offered, understand how or why this local authority failed these two children so very badly.  Nevertheless, I am satisfied that the appointment of a new director and a new management team, who are alive to the past failings in these and in other cases, will lead to an improved service for the children and young people who are now or hence forward will be placed in the care of this local authority.

 

 

The Local Authority argued that they should not be named in this judgment.  Given that the title of the case is Herefordshire Council v AB 2018,  how do you think that application went?

 

Publicity

  1. I have indicated to the parties at earlier hearings that I was minded to give a public judgment in respect of both cases.  It was submitted on behalf of the local authority that I should anonymise the names of all parties, including the local authority, because the adverse publicity would be damaging to the council.  I subsequently received a letter from the director bringing to my attention Hereford’s struggle to recruit solicitors and social workers and that “adverse publicity for the local authority does count in the minds of some prospective employees and it would be unfortunate if our historic failings were to turn people away.”  The contents of this letter, which had been disclosed to all of the other parties, caused me to consider once more whether it was necessary for me to name the local authority in this case.  After long and careful reflection I have concluded that it is.  I decided that a public judgment which named the local authority was necessary for the following reasons: (a) the President has repeatedly emphasised the importance of transparency and openness in the conduct of cases in the Family Division and in the Family Court; (b) the public have a real and legitimate interest in knowing what public bodies do, or, as in these cases, do not do in their name and on their behalf; (c) the failure to plan and take action in both of these cases is extremely serious.  There were repeated flagrant breaches of guidance from the judges of the division and of standard good practice; (d) it is evident that this case emanates from the Midlands Circuit.  Not to identify the relevant local authority would unfairly run the risk of other authorities on this circuit coming under suspicion; and (e) the President and the judges of the division have always previously taken a robust approach on the identification of local authorities, experts and professionals whose approach or working practices are found to be below an acceptable standard. 
  2. The director is understandably concerned about the potential adverse consequences of a public judgment.  I fully understand those concerns, but, for the reasons I have given above, I do not consider these concerns should lead me to anonymise the local authority.  In my view these concerns are addressed, or at least ameliorated, by the court making it clear, as I do in paragraphs 11 and 12 above and in the paragraphs below, that the criticisms set out in this judgment relate to the past actions of this local authority and that there is now a new director and leadership team in place who are committed to change and to improve the care and provision of services to the children and young people in its care.

 

To be fair, even as someone who practised law for ten years in the Midlands, I had no idea that Hereford was considered to be in the Midlands circuit, so it wouldn’t have been on my suspect list had the Court just said “a Local Authority in the Midlands”

Geography is not my strong suit.  I have yet to establish what my strong suit is, other than snark.

 

Hereford will now be waiting to see what the Supreme Court decide in Hackney about human rights claims arising from section 20 misuse.  These are very bad ones.  If HRA claims are still going after Hackney, expect this to break all records.

Das reBoot – Court of Appeal find reverse gear (once again)

 

A major theme in family case law over the last 2-3 years has been misuse of section 20 – voluntary accommodation, with all sorts of guidance being provided, culminating in the President of the Family Division giving a decision in Re N 2015 which just invented huge new chunks of legal obligations on Local Authorities and threatening damages if they didn’t obey.

 

That in turn, quite coincidentally, led to the biggest increases in number of care proceedings issued that we have seen since the Baby P crisis hit. It is a complete coincidence, of course. I mean, over that same period of time, we haven’t actually seen the number of children in foster care go up at all, but we have seen the number of care proceedings go up by 35%, but the two things are utterly unrelated.

 

As I’ve said before, I do think that there was a genuine problem with section 20 misuse and it needed to be addressed – I just think we swapped one problem for three others – an increased demand which the system utterly couldn’t manage, an increased layer of complexity and time in dealing with claims being added into care proceedings which the system utterly couldn’t manage, and an insoluble problem about how to deal with the cost issues caused by the statutory charge which, you’ve guessed it…

(And also, as I’ve said before, I’d be entirely up for Parliament to review s20 and put in some stronger safeguards for parents – I think a very short limit on the initial s20 and it to be reviewed at a meeting to which parents have free legal advice would be a start)

Anyway, the Court of Appeal today have given judgment on an appeal from one of the early s20 damages cases – this was one where the police removed children after the father hit one of them with a belt, the police arrested the parents and gave them bail conditions not to live with the children, and the parents objected to s20.  The parents later sued the LA for breach of their human rights in continuing the s20 without their express consent.

 

I wrote about the original case at the time, and if WordPress ever stops behaving like a four year old hopped up on Tartrazine, I’ll put a link in.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2017/26.html

 

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017)

 

(you can skip right to the end if you just want the reboot paragraph, I’ve put it in super large font)

 

So this is an appeal from an award for £10,000 damages against Hackney, where the parents had been arrested and had bail conditions not to be with the children. The LA asked for s20, the parents refused to sign and the LA relied upon the statute that the parents were prevented (for whatever reason) from providing accommodation and thus s20 (1) (c)  was met, and that the parents objection had to be looked at in the context of s20(7) which states

 

(7) A local authority may not provide accommodation under this section for any child if any person who—

 

(a) has parental responsibility for him; and

 

(b) is willing and able to—

 

(i) provide accommodation for him; or

 

(ii) arrange for accommodation to be provided for him, objects.

 

 

The parents were objecting, but weren’t providing any alternative accommodation, and weren’t in fact able to provide their own accommodation (because they would have then been in breach of bail conditions, and arrested. So the LA view was that it wasn’t a legal objection because they weren’t able to meet (b) (i) or (ii)

 

 

This all happened, by the way, in 2007.

 

The High Court looked at it in  September 2015 , and decided that the bail conditions weren’t sufficient to defeat the objection under s20(7) and awarded the parents £10,000 compensation each, plus costs. The High Court were clear that the allegations that led to the arrest were largely true (the father had hit the child with a belt) but nonetheless the parents human rights had been breached by the LA s20ing the children without consent, rather than seeking consent or a court order.

 

This, 18 months later, reaches the Court of Appeal.

 

 

The Court of Appeal look at Sir Mark Hedley’s decision in Coventry City Council v C [2013] EWHC 2190 (Fam) ,  and the Court of Appeal decisions giving judicial guidance on s20 cases  Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

 

The Court of Appeal say that those cases didn’t have to specifically determine a s20 issue, so where they have made comments, they are obiter and not binding. Specifically, what the President says in Re N is not binding on the Court of Appeal in a case where argument has been specifically heard on the s20 and where s20 is a ratio issue.

 

 

59.In relation to item (d), after setting out the terms of s. 20(8), Sir James stated (at [169]):

 

‘This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.’

60.In conclusion, Sir James set out further requirements of good practice, in addition to those identified by Hedley J before stating [171]:

 

‘The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.’

 

72.Finally, in Re N, the judgment of Sir James Munby P does repeat his conclusion that parental consent is required by the statute; this can most conveniently be seen from two sentences (from [163]):

 A Local Authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent.”

73.In considering this passage in the President’s extensive judgment in Re N, it is necessary to be clear that any issues relating to s. 20 were very much at the periphery of that case, the focus of which was the jurisdiction of the English Family Court to make orders leading to adoption with respect to foreign nationals. It seems plain that the section of the judgment as to the working out of arrangements for s. 20 accommodation arose from concern, evidenced by a raft of recent first instance decisions, as to social work practice in general. No issue in the case of Re N turned on the interpretation of s. 20, or, indeed, on any matter with respect to s. 20. It is apparent that Sir James was using the opportunity provided by the fact that the children in Re N had been accommodated for eight months before the local authority issued care proceedings as a hook upon which to hang some, no doubt timely, firmly worded and important good practice guidance. Despite the respect that this court undoubtedly has for the opinion of a judge of such authority on these matters, the short judicial statement (in [163]) following a hearing at which the interpretation of s. 20 was not in issue cannot be binding upon this court where the focus is directly upon s. 20 and where there has been full argument.

 

 

 

Therefore, s20(7) does apply where the parent is not able to provide accommodation themselves, or is unable to provide alternative accommodation. In those circumstances, a parent’s objection does not defeat s20 – they need to be able to provide accommodation themselves or from third parties in order to satisfactorily object.

 That does NOT mean, and should not be interpreted to mean that in a scenario where the parent says “I object to s20, the child can come home with me’ that the LA can hide behind s20(7) and say that the home offered was unsuitable or dangerous, or they didn’t think it was a good idea. S20(7) goes only as far as the parent not being ABLE to have the child live with them (think bail conditions, homelessness, incarceration or detention in mental health hospital, that sort of thing) and where they aren’t able to provide any other accommodation.  It doesn’t cover “the child could live with my brother Mike” and the Social worker going “hell no”

 

 

74.I recognise that, in the context of the cases that he was then considering, it may well have been appropriate for Sir James to equate the obligation on a local authority not to use its powers under section 20 if a parent ‘objects’ as meaning, effectively, that when the parent is known and in contact with the authority, consent is required but, in my judgment, it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances. In this case, the parents had the benefit of solicitors experienced in both family and criminal law. Their ability to apply to remove the prohibition on contact with the children was well known and emphasised by the solicitors in correspondence. The local authority was not responsible for the bail condition and had no obligation to take proactive steps to have it removed. If the solicitors had wanted the local authority to express a view, an appropriate official could have been requested to do so by the court or been the subject of a witness summons to attend.

 

 

75.On any showing, it was not for the local authority to aid and abet the flouting of the bail condition and it is not sufficient to argue that the local authority should have sought to persuade the police to modify the condition. The only inference to be drawn from the fact that the condition remained in place was that the parents (no doubt on advice) were prepared to negotiate with the police rather than risk a conflict in court. In those circumstances, for the period that the bail condition remained in place, they were not in a position to provide accommodation for them within s. 20(7)(b)(ii) of the 1989 Act and were thus not in a position legally to object whether or not they formally consented.

 

 

76.Thus, the continued existence of the bail condition had the twin consequence that Mr and Mrs Williams, firstly, were ‘prevented … for whatever reason’ from providing suitable accommodation and care for their children (s 20(1) of the 1989 Act) and, secondly, were not ‘able’ to provide accommodation for them in order to trigger their statutory right to object (s 20(7) ibid

 

 

This is the really important bit, with wider implications than the bail conditions/parent in prison objecting to s20 though.

 

 

 

77.Before passing from the issue of s. 20 of the 1989 Act and consideration of the guidance given by Sir James Munby P, Hedley J and others in the Family Division cases to which I have referred, I wish to stress that nothing that is said in this judgment is intended to, or should be read as, altering the content and effect of that guidance in family cases. The focus of the court in the present appeal is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act. The guidance given in the family court, which has built upon that bottom-line in the period since the Williams’ children were removed, identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed, notwithstanding the limits of the underlying legal requirements in s 20 that I have identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.

 

I would expect to see that paragraph quoted by Local Authorities in response to any suggestion of HRA claims for s20 damages in the future.  There may be circumstances where this sort of breach does give rise to action, and we’ll have to wait to see that litigated, but it is going to need something more than just failure to comply with the guidance.   The Court of Appeal were also scathing about the proportionality of litigating this particular HRA claim – the damages were out of proportion to the costs and the Court also made it very clear that they considered the quantum of damages to be significantly more than they would have contemplated.

 

This brings me to another trend in family law – we had the raised test for interim care orders, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’, then the raised test for adoption, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’ and now the raised tests for s20, which caused all sorts of mayhem and has now been rolled back by the Court of Appeal saying ‘oh, they DID mean it, but they weren’t actually able to apply the teeth to it that they thought they were applying’

 

Perhaps when far-reaching judicial speeches that go further than the issue being litigated next arises, the Courts could hear full argument about the implications of what they are contemplating? Or, heaven forbid, just only tell us what the law means where it is the issue in the case and the law is unclear, rather than reworking the plain words of the Statute into what you happen to wish they said instead?

 

 

Law for social workers (part 2)

Ah admit it, you skipped straight here, didn’t you?  In which case, you missed a lot of cool stuff about lizards, that’s for sure.

 

In this part, I’ll tell you the key tests and principles from the Acts and case law, for each sort of order.  I will keep this up to date if the law changes, and it will be up on the front page on a tab.

 

Let’s start with the thing that is changing more dramatically than anything else at the moment, and it ISN’T an order.

 

Section 20 accommodation

 

Section 20 is the voluntary agreement of a parent for the child to come into foster care.  For almost 22 years of the Children Act 1989 it was completely ignored by the Court and barely got a mention. Then all hell broke loose.

It started with a decision by Mr Justice Hedley, where a mother was asked to agree section 20 consent immediately after a C-section. She also had learning difficulties and was basically scared into signing it by threats that if she didn’t, the social worker would go to Court and get an EPO.

From that case, which you can read about here,

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

the following principles were derived.  These are REALLY important for all social workers to know. I would seriously recommend having them on a piece of paper that you have on your person when doing any visit – because if the issue of section 20 comes up, it is on YOUR shoulders to evidence that you knew about all of this and took it all into account – the records are going to need to show all of it.

 

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

At the moment, Human Rights Act damages are being paid out by Councils not just for misuse of section 20 to get a child INTO care, but delaying too long in making decisions about a child’s future once they are IN care – an issue called section 20 drift.

 

The law has developed still further, with the Court of Appeal in Re N suggesting that section 20 agreements should always be in writing and that it is not sufficient for a Local Authority to rely on an absence of objection.  Also that if a parent withdraws their consent, the LA have to either get an immediate Court order (very very hard at present due to Court access) or return the child. I’d suggest that Re N is a major factor in the volume of care proceedings going up 20% this year, and it is going to keep going up.

Re N is here http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html  (don’t read it, because 98% of it is unintelligible stuff about international law, but if you MUST, skip straight to para 157

 

Be REALLY aware that going to a maternity ward to ask for s20 consent with a police officer there as back up is liable to make the s20 consent invalid as made under duress

  1. Surrey County Council –v- M, F & E [2012] EWHC [2400] a decision of Mrs. Justice Theis and at paragraph 60 she said this:-

“To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order.”

 

And that leads us nicely into

 

Police Protection

 

 

First things first-  EVERYONE calls these PPOs  (because they sort of sit beside Emergency Protection Orders EPOs) but there’s no O. There is no Order. This is the police exercising their power to remove a child

http://www.legislation.gov.uk/ukpga/1989/41/section/46

 

46 Removal and accommodation of children by police in cases of emergency.

(1)Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—

(a)remove the child to suitable accommodation and keep him there; or

(b)take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.

 

And you can see from the statute that the test for this is pretty low. It is an administrative decision taken by a police officer at the time, on the scene.  There’s no filing of evidence, no legal argument, no representation of a parent, no voice of the child, and no Judge weighing things up

It is for that reason that the Court’s don’t like them and have made it clear that “Wherever possible, a decision to remove a child from a parent should be made by a Court not as an administrative decision”.   Police Protection should be reserved for situations where the risk can’t even be managed long enough to go to Court and seek an EPO. That’s a LOT rarer than their actual use.

Be warned, if a Court scrutinises use of Police Protection and thinks that the LA were involved and used it as a short cut or an easy way to get the child into foster care without having to go to Court, damages can and will be made.

 

https://suesspiciousminds.com/2014/05/01/misuse-of-police-protection-human-rights-claim/

“Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court.”

 

The lead case is Langley v Liverpool 2005, so these issues are not exactly new.  The Home Office Guidance above makes it really clear that s46 is an emergency power only, not to be used if the Court can make a decision instead.

 

Emergency Protection Order

 

The bare statute just says this:-

44 Orders for emergency protection of children.

(1)Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a)there is reasonable cause to believe that the child is likely to suffer significant harm if—

(i)he is not removed to accommodation provided by or on behalf of the applicant; or

(ii)he does not remain in the place in which he is then being accommodated;

 

[It is quite often overlooked that actually ANY person can apply for an EPO – unlike care orders, where only the LA or NSPCC can apply. In 25 years, I’ve only seen a parent apply once for an EPO, but it can happen]

The Courts set a much higher test for EPOs than the Act does.

The lead case is Re X and B Council 2004

 

http://www.bailii.org/ew/cases/EWHC/Fam/2004/2015.html

There are 14 points in there which the High Court say MUST be drawn to the attention of a Court considering an EPO application – the case law has to be produced and the Court referred to these 14 points when making the application.

Critically for social workers

An EPO, summarily removing a child from his parents, is a “draconian” and “extremely harsh” measure, requiring “exceptional justification” and “extraordinarily compelling reasons”. Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child’s safety; “imminent danger” must be “actually established”.

 

If your statement or evidence in relation to an EPO does not ‘actually establish’  ‘imminent danger’ then you can’t have your order.

and

 

The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.

 

It is probably the HARDEST order to obtain, and many would argue rightly so. The test set down by the High Court in re X and B, compared to what the Act says is the difference between a limbo bar and a pole vault.

 

Removal under an Interim Care Order

 

Again, the bare statute doesn’t say much

 

38 Interim orders.

(1)Where—

(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

(b)the court gives a direction under section 37(1),

the court may make an interim care order or an interim supervision order with respect to the child concerned.

(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).

 

The Courts though have set a higher test for removal under an Interim Care Order, and THAT is the test that social workers must address in their written and oral evidence

 

 

“that separation is only to be ordered if the child’s safety demands immediate separation.”

It may do no harm to invite particular attention to Wall LJ’s definition of “safety” in this passage in Re B and KB. The concept of a child’s safety, as referred to in the authorities which I have cited, is not confined to his or her physical safety and includes also his or her emotional safety or, as Wall LJ put it, psychological welfare. Indeed, it may be helpful to remember that the paramount consideration in the court’s decision as to whether to grant an interim care order is the child’s welfare, as section 1 Children Act 1989 requires, and as Wall LJ shows when he says that in his view “KB’s welfare did demand her immediate removal from her parents’ care”.

 

Re GR and Others (Children) 2010

http://www.bailii.org/ew/cases/EWCA/Civ/2010/871.html

 

I was going to squeeze adoption into this part, but it has already been pretty long, and my Chinese food has arrived, so I’ll clean up adoption over the weekend.

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

Absconding and secure accommodation

This Court of Appeal decision hasn’t come up on Bailii yet, and I’m grateful to Graham Cole from Luton’s LA legal team for alerting me to it.

 

RE W (A CHILD) (2016)

 

[2016] EWCA Civ 804

 

A lawtel link is here, but that’s only good if you have access codes to it. Will keep an eye out for it on Bailii.

 

https://www.lawtel.com/MyLawtel/Documents/AC0151488

 

It relates to an application for a Secure Accommodation Order for a girl who was 17 years and 8 months old.  There’s a common misconception that you can’t have a Secure Accommodation Order on a child over 17  (in fact, what the Secure Accommodation Regs prohibit is secure accommodation for a child accommodated under s20 (5) of the Children Act 1989.

 

Secure Accommodation Regulations 1991

Children to whom section 25 of the Act shall not apply

5. –

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983(1) or in respect of whom an order has been made under section 53 of the Children and Young Persons Act 1933(2) (punishment of certain grave crimes).

(2) Section 25 of the Act shall not apply to a child–

(a)to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

 

So a 17 year old accommodated because of a Care Order, or under s20(3) is okay.

However, when you look at the definitions of s20(3) and s20(5) side by side

 

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

 

and

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

Then you can see that determining which one was used for any given young person is tricky, as there’s a waffer-thin mint between them, AND it all hinges on what was in the LA mind at the time of accommodation and whether they correctly alloted the young person to the (reasonable and proportionate) type of accommodation.   IF the accommodation is to stop their welfare being seriously prejudiced, then they can securely accommodate. If the accommodation was just to safeguard or promote welfare, they can’t.

 

Initially, I thought “Well, any s20 where the concerns are sufficient to want to go for secure, will trigger s20(3)”  but remember, one is looking at the reason for the provision of accommodation in the first place, not necessarily immediately before the secure accommodation application. If a young person leaves home and is accommodated under s20(5)  to prevent them having to sofa surf or be homeless, then when there’s a later deterioration in behaviour that triggers the secure criteria, the option wouldn’t be open to the LA.   Can the LA discharge the s20(5) and immediately convert it to s20(3) ?  That sounds a bit iffy to me.  (My legal summary of ‘a bit iffy’ is not necessarily the way I would express it in the Court of Appeal. Let us instead say “has the hallmarks of an abuse of process)

 

Be grateful I went for THIS image rather than the many others available

Be grateful I went for THIS image rather than the many others available

 

What has always been a bit dubious/uncertain, if you don’t have a Care Order on the 17 year old, is the power of the LA to accommodate a young person against their will, and specifically by then locking them up, if accommodated under s20(3) and a Secure Accommodation Order is obtained.

The statute doesn’t say anything about a young person’s capacity to discharge THEMSELVES from s20 accommodation. It says specifically that a parent has the right to discharge them by objecting or removing, and it says specifically that post 16 a parent can’t do that if the young person wants to remain in s20. But it says nothing about a young person saying “I don’t want to be here, I’m checking out.”

Well, maybe you can check out any time you want, but you can never leave….

 

W’s lawyers were saying that W DID NOT consent to being accommodated under s20(3), and thus could not be accommodated, and if she wasn’t accommodated, she couldn’t be SECURELY ACCOMMODATED.

The LA lawyers said, the statute doesn’t say that W has to consent.   (It doesn’t say that the parents have to consent either, but that particular ship has sailed with the caselaw on s20 over the last year)

The Court of Appeal on this point said  (and curse it not being on Bailii, because I’m having to TYPE this rather than cut and paste it as normal)

 

“A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a Local Authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child’s consent is not a pre-requisite of the making of a secure accommodation order”

They also indicate that for secure based on s20(3), the parents have to be consenting to the s20 accommodation  (the s20(11) provision that a 16 year old can block parents removing them from s20 if they want to stay there doesn’t apply, because it is not removal but entry that is up for debate)

The Court of Appeal also had to look at whether the secure accommodation criteria were met, and there’s a novel argument there.  W’s lawyers argued that W was not ‘absconding’ from placements. She was absenting herself and then returning, whereas absconding carries the connotation of ‘escape’  and this was developed into ‘escape’ has a connotation of an intent to be absent indefinitely.

 

Now, that’s very very important. An awful lot of the ‘absconding’ that you see in application for Secure Accommodation Orders is a young person going missing for a few days and coming back of their own free will – and them putting themselves in danger in the interim. You do see some absconding which fits the classic ‘escape with intent to avoid recapture’ where the child is missing for weeks or even months and generally gets picked up by the police not entirely voluntarily, but those are rarer.   The very modern post Rochdale phenomenon of Child Sexual Exploitation leading to secure is very much a young girl not returning to placement after school and staying away for a few days (with abusive and exploitative men) and then returning home.  This case is raising the important issue of whether that actually IS absconding.  If it ISN’T, then the first of the two possible limbs to satisfy the Secure Criteria is not made out.

 

25 Use of accomodation for restricting liberty.

(1)Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—

(a)that—

(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii)if he absconds, he is likely to suffer significant harm; or

(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

 

So if the Court of Appeal rule that ‘absconding’ for s25 means some intent to escape with intent to stay away, then ground (a) can’t be made out for a lot of young people in Secure, because although they are AWOL a lot, and missing a lot, they are coming back and intended to, rather than had the intent to ‘escape’.   Ground (b) might still apply, but most Secures are dealt with on ground (a).

 

This could be very big.

What did the Court of Appeal decide?

 

21. Miss Judd QC’s arguments in relation to the Judge’s definition of ‘absconding’ arose in the fact-specific circumstances of the case and did not persuade us that it was necessary to define the term beyond its everyday meaning.

 

[That noise you just heard was 500 LA lawyers breathing out. Don’t jump the gun – the Court of Appeal might SAY that they don’t think it’s necessary, but they are probably still about to do it anyway]

 

Munby J (as he then was)

 

[500 LA lawyers just said ‘oh god, no’]

 

in Re G (Secure Accommodation Order) 2001 FLR 884 at 895 relied on the definition of ‘abscond’ found in the Concise Oxford English Dictionary. This accords with the usual application of the term to connote the element of ‘escape’ from an imposed regime.  Mr Tyler QC’s reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps borne of the need to support his argument that Keehan J’s approach to the issue was correct.  Although trite to say, the facts will speak for themselves.  As it is, we are satisfied, as we indicate below, that the Judge wrongly categorised W’s absences from the Unit in which she had been placed since January 2016 as absconding.

 

This particular girl had NOT absconded.

 

We don’t have Keehan J’s judgment to look at the facts, but the Court of Appeal say at para 7 that she has from a variety of placements and units, absented herself at all hours to pursue her own ends and has not followed the rules in any of the placements, when absent she has been with risky adult males and come back with sums of money. It looks, therefore like the sort of CSE case I discussed earlier.  Lots of short-lived absences without leave, which the Court of Appeal concluded did not amount to absconding.

Eep.

22 . In determining that W had absconded, Keehan J invoked the facts that W had ‘disengaged’ with the Unit, returning “not just a few hours later but well into the following day”.  I do not consider that this meant that W was ‘absconding’ from the Unit, in terms of  escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.

 

The Court of Appeal went on to say that in W’s case, they considered that the second criteria (b) was made out in any event and thus a Secure Accommodation Order could legitimately be made.

 

But the first criteria is now in tatters for a lot of cases  –  the Court of Appeal are looking for evidence that the young person ‘escaped indefinitely from an imposed regime’   rather than ‘deliberately absenting themselves for  limited period in breach of rules.  Obviously, the shorter the period of absence the harder it will be to prove that the young person ‘escaped indefinitely’, particularly if they return of their own volition.  Ground (b) will be the criteria to inspect chronologies for in the future – the absconding ground just became very tough to prove in 80% of cases.

 

 

If you enjoyed this piece, or like the blog generally – my novel which is set in a Children’s Secure Accommodation centre, is available to pre-order and should be out around Christmas time.  I’d LOVE your support, which you can provide by pre-ordering here

 

https://unbound.com/books/in-secure

 

Inordinate delay in issuing proceedings (£45K damages)

 

This is a Circuit Judge decision made in my local Court (it is not a case that I or any of my colleagues are involved in, so I can write about it) so I will try to avoid much comment and stick to the reported facts.

 

Re X, Y and Z  (Damages: Inordinate Delay in issuing proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B44.html

Three children had been s20 accommodated from January 2013 until July 2015 when an Interim Care Order was made. The Court determined that the s20 had been lawfully entered into and was valid, but of course on the authorities, a valid s20 does not prevent a human rights breach based on delay.  Whilst the mother in this case had never formally withdrawn her consent or lodged an objection, she had been asking for more contact with the children and saying from time to time that she would like them to come home.

 

  1. The mother clearly frequently stated that she would wish to care for the children and certainly to see them :
  2. i) 8.2.13 Letter from Z seeking to see the children.

ii) 1.3.13 Z asks for contact and to have the children back in her first meeting with a social worker

iii) 3.4.13 Z seeks fortnightly contact in a telephone call.

iv) 5.9.13 LAC review – stated that Z would like to be able to care for the children.

v) 14.1.14 Report for LAC review notes that Z would like to see the children and that she sometimes states she wants to care for the children and sometimes that she just wants to have contact with them.

vi) 8.4.14 Legal Planning Meeting Solicitor for Z stated that she had requested both children be returned to her care as soon as possible…if not returned to her care, would like increased contact.

vii) 26.11.14 LAC Review Z would like to be able to care for the children.

 

 

The Judge ruled that the children’s article 6 and  8 rights were breached in the following ways

 

  1. It follows from all that is set out above that I make the following declarations:
  2. i) West Sussex County Council acted unlawfully and in violation of the Convention Rights of X, Y and Z as follows:

a) Purported to exercise parental responsibility for X and Y for a period of almost two and a half years when they did not hold parental responsibility for the children.

b) Failed to promote contact between the children ,X and Y and their mother Z.

c) Failed to issue care proceedings for almost two and a half years causing the children to be without access to independent representation, failing to carry out adequate assessments and allowing the children’s permanence plan to drift.

d) The Independent Reviewing Officer failed to challenge the conduct of the Local Authority sufficiently robustly.

The judgment contains analysis of the relevant authorities on s20 breaches, s20 drift, human rights claims and calculating quantum.

The Judge concluded that each of the  children should receive the sum of £20,000 in damages  (*initially, with the case being called X, Y and Z, I’d assumed three children and hence £60k, but I am told two children. Still £45k is a lot of money)

 

  1. The factors to be considered for the children are substantially different to those for the mother and consequently must be assessed separately. The main factors in relation to quantum are :
  2. i) A failure to assess their needs for an inordinate period of time – over two years before any report was obtained;

ii) The fact that they were denied access to any independent legal representation for two and a half years – of particular importance when they had no relatives in the country who would be able to care for them and when they had been the subject of apparent abuse during their time in Jamaica;

iii) Little promotion of contact with their mother even though X indicated in February 2013 that he would like to go back to her – there was no contact for the next twelve months;

iv) No comprehensive assessment of their needs although it was indicated as early as March 2013 that such an assessment was required;

v) Frequent changes in placements without any input from anyone with parental responsibility

vi) Placement with W, the previous foster carer, without any such assessment or understanding of any abuse they had suffered in Jamaica;

vii) The fact that the children are now in separate long term foster placements with no contact with each other or any other relative and X is not in a culturally appropriate placement;

  1. It is apparent that the end result for these children is not a good one. It is not possible now to say that the outcome would have been any different if proceedings had been issued in early to mid-2013 which should have occurred. However, it is difficult to see how the outcome would have been much worse and the loss of a chance of a better conclusion must be reflected in any award that is made.
  2. This case appears to be at the upper end of the bracket that has been awarded in similar cases. The only aggravating feature which is not present in this case, which is present in the majority of other such cases, is the fact that I have found that the s.20 agreement is a valid one. I am not going to set out all of the possible comparators as they appear in the table in the Medway case but I would simply state that this case involves the longest period as well as a poor outcome which may not have been the case without the breaches. As a result due to all of the issues which have been highlighted I am satisfied that the children should be awarded the sum of £20,000 each for all of the breaches of their Article 6 and 8 rights.

 

 

In relation to the mother

 

The Mother’s Award

  1. The mother is in a different position as she did have the benefit of legal advice from June 2013 onwards and as a result would have been able to withdraw her consent at any time thereafter. This must be of significance in considering damages as the inordinate delay in this case is the most troubling aspect and that delay could have been stopped at any time by the simple act of instructing her solicitor to withdraw her consent.
  2. It is argued on behalf of the Local Authority that this feature is of such significance that it should mean that the mother would receive ‘just satisfaction’ by way of a declaration alone. However that ignores the other crucial factors in her case which include :
  3. i) The frequent requests for contact to her children which were simply ignored by West Sussex although there was no legal basis to do so;

ii) If proceedings had been issued the Local Authority would have been obliged pursuant to s.34 Children Act 1989 to promote such contact;

iii) The failure to properly assess the mother due to the fact that she had been fully assessed in the previous proceedings some five years earlier.

  1. It seems unlikely that the children would have been placed with their mother if the proceedings would have been commenced in a timeous fashion and as such there does not need to be any award for the loss of that chance. However, the same cannot be said in relation to contact as that may have been very different if addressed much earlier. The children are now stating that they will not see their mother but that was not the position when they first arrived at Gatwick in January 2013. This loss is even more significant now that each child has no contact whatsoever with any member of their family.
  2. In these circumstance the appropriate level of damages for the mother must be far lower than for the children and I assess the figure of £5,000 as the correct amount to compensate her for her Article 6 and (more significantly) Article 8 rights.

 

 

Looking at the chronology given in the judgment,  there was involvement with lawyers as early as 24th June 2013, which was still 2 years before proceedings were issued.

 

The Judge was very critical of the  Independent Reviewing Officer (IRO), who would have been holding Looked After Child Reviews at regular intervals during the 2 1/2 years of s20. He found that they, too, had been responsible for breaches of both the mother and the children’s human rights.

 

  1. The Independent Reviewing Officer failed to challenge the conduct of West Sussex and did not promote care proceedings. The functions of the IRO are set out within s.25 Children Act 1989 and they include monitoring the performance of the Local Authority of their functions in relation to the child’s case. In the case of A and S v Lancashire CC [2012] EWHC 1689 at para 168 it was submitted (and Jackson J did not demur) that the task of the IRO was to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child”. Their roles are more fully set out within the “IRO Handbook” which provides the relevant statutory guidance. In the Lancashire Case it was found that the failures of the IRO amounted to a breach of the children’s rights.
  2. The actions of the IRO in this case are fully set out within the statement of Children’s Safeguarding Manager and which is referred to above, which concludes with a list of ‘Strengths’ and ‘Areas for Development’ and the latter included :
  3. i) “the Review minutes do not consistently contain sufficient specific evidence of IRO challenge, especially on issues in relation to progress towards permanence”

ii) “the decision specific to the permanence plan was not specific enough and did not contain any target dates”

iii) “would have expected more explicit detail in relation to the permanence plan of long term fostering and the need to seek legal advice”

  1. It does not seem to me that this adequately highlights the deficiencies of the IROs (there were two) in this case. There does not appear to be any note whatsoever of the IRO cajoling the Local Authority on timescales and this can be highlighted by two simple issues :
  2. i) There is a bald statement in the second review held in May 2013 that an SGO assessment is about to commence in relation to the paternal aunt. This is repeated in the fourth review in January 2014 which records that “an SGO assessment will be undertaken at the appropriate time”. It is noted at the fifth review in July 2014 that the paternal aunt still wished to have the children living with her under SGOs but the assessment is still not there some fourteen months after it was first raised. This is a simply appalling delay and does not seem to be criticised by the IRO – if there is not going to be criticism in such cases then one has to ask when would it ever occur?

ii) The IRO was aware in May 2013 that the mother wanted contact to the children but no decisions were made on this crucial point at the time. In September 2013 it was noted that indirect contact had happened and the next stage would be to consider re-introducing direct contact yet by the fourth review it is simply noted that they were “working towards direct contact”! The first face to face contact did not take place until February 2014, a full 13 months after the children had arrived in the UK with the mother saying that she wanted to see the children throughout and the eldest child, X, having said he would like to see his mother in February 2013. It is entirely possible that the contact would not have been successful (as has in fact occurred) but it must be the duty of the IRO to challenge this astonishing delay in attempting such contact in circumstances when the children had no involvement with any member of their birth family.

  1. The lack of urgency in the case is breath-taking and it is simply wrong to point out the failures of the IROs to force the issues as an “Area for Development”. It was a total failure to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child” as they should have been doing. This was clearly a case that should have come before the courts years before it actually did yet the IRO did not appear to put any pressure upon the Local Authority to ensure that this occurred. There is power within s.25B(3) Children Act 1989 for an IRO to refer the case to CAFCASS if it is considered it was appropriate to do so. It is difficult to understand why such action should not have been carried out in this case in order to ensure that the welfare needs of these children were fully protected.
  2. It follows that the failures of the IRO were sufficient in this case to amount to a breach of the children’s and the mother’s rights to family life and a fair trial.

 

 

If I were a betting man, and I am, I would expect an increase in care proceedings issued when the September set of CAFCASS stats come out.  And the volume of care proceedings issued is already at an all-time high.

Section 20 – keys to open the door, keys to hold the door

 

This has been nibbling at me for a while, and there isn’t a clear answer, so I wanted to highlight the question.

 

Under section 20, it is really clear that if either parent with Parental Responsibility OBJECTS to the section 20 then it can’t happen  – at least, not if they are able to provide accommodation for the child or arrange for it to be provided.

[Often that last bit is forgotten about. Of course, they also have the s20(8) power to simply remove the child, but I’m not sure what happens next if they’ve removed the child from s20 but aren’t actually offering the child accommodation themselves or arranging for it elsewhere. Do they just stand on the street with the child?  Note that the objection in s20(7) doesn’t say that the accommodation must be ‘suitable’ or ‘appropriate’ or anything like that. If the LA think that it isn’t, their only remedy is care proceedings, not to say – ‘we’re going to continue s20 because your house is currently underwater/full of broken glass/has a staircase designed by Escher/ is occupied by rabid wolves and is thus not safe for a child’ ]

 

s20 (7)A local authority may not provide accommodation under this section for any child if any person who—

(a)has parental responsibility for him; and

(b)is willing and able to—

(i)provide accommodation for him; or

(ii)arrange for accommodation to be provided for him,

objects.

(8)Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

 

Now, under the Act itself, a parent giving CONSENT to s20 is not actually a thing. It is just an absence of that objection. But under the developing case-law, particularly the obiter parts of Re N from the Court of Appeal, the President is very clear that s20 should be done by consent, and with that consent in writing.

 

Now, my question is (and this does actually happen) – where a mother (say) wants some respite care and consents to s20, does the LA need the CONSENT of the father who is indicating that he won’t give it, because he doesn’t want the children to come into care?  On the wording of the Act, UNLESS father is offering a home to the children himself, or arranging other accommodation for him, he can’t actually object to the s20.

But under the case-law, which suggests that you need more than an absence of objection, you need active consent, can he block mother’s respite without offering an alternative, by simply refusing to consent?

Can he spite mum’s respite?

[You can swap mum and dad over, if gender bias is troubling you here – it can and does work the other way too]

Now, if the child is disabled, then the respite is not provided under s20, it is provided as specifically respite care under different legislation and the non-resident parent CAN’T block it. But with a child who is not disabled, the only way the child can have respite care is through s20.

The Act allows a single parent to ask for it, as long as the other parent doesn’t say “I object, the child can stay with me / Auntie Beryl”

And there’s also

section 2 (7)Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.

 

Which makes it clear that each person with parental responsibility has a KEY. Either of them can use that KEY to open the lock to any door for an issue where parental consent is required. It is only where an ACT specifically says, this particular door needs TWO KEYS that the consent of both is required.   [Passports, for example. Adoption, for another.]

So on the Act, I don’t think that a non-resident parent can block respite care UNLESS they are offering to care for the child themselves or to arrange for Auntie Beryl to do it.  That’s when s20(7) kicks in.

 

But from the case-law, there’s a strong suggestion that the consent of everyone with PR is needed before s20 can take place, which does allow a parent to block respite care without coming up with any alternative suggestion.

The Act suggests that one parent can OPEN the door to s20 respite care with one key, their own PR  (and the door can only be held shut if the other parent offers an alternative home for the child and objects under s20)

The case law suggests that one parent can HOLD THE DOOR shut, even though they aren’t able or willing to care for the child themselves or to help out.

Given that Re N is obiter, and has been successfully appealed (though not on the s20 point), my own view is that the Act prevails, particularly because s2(7) says “Enactment” meaning that it is only statute that can insist that any particular door is a two key door. Case-law can’t insist that a particular door is a two key door, only an Act of Parliament can. And s20 is not specified as a two key door.

I don’t think then, that a non-resident parent can HOLD THE DOOR shut, though I can’t be absolutely certain.

 

Anyway, much of the imagery in this case was just leading up to this picture.

 

Terrible grit in my eye for some reason. Not actually crying. Just grit. Honest.

Terrible grit in my eye for some reason. Not actually crying. Just grit. Honest.